Baker v. AmplifyBio, LLC

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I. Introduction

This case involves the application of the Worker Adjustment and Retraining Notification Act of 1988 (the "WARN Act"), 29 U.S.C. §§ 2101.- 2109. On May 16, 2025 (the "Petition Date"), AmplifyBio, LLC ("AmplifyBio") filed its chapter 11 petition. Approximately six weeks before the Petition Date, on April 4, 2025, AmplifyBio terminated substantially all its employees by sending termination of employment letters to 212 employees. On May 22, 2025, plaintiffs, Tessa Baker ("Ms. Baker") and Elizabeth Perry ("Ms. Perry") (collectively, the "Plaintiffs"), who were both employed by AmplifyBio until April 4, 2025, commenced this adversary proceeding on their own behalf and as a putative class action on behalf of all other employees of AmplifyBio who were terminated at the same time.¹The Plaintiffs assert that AmplifyBio and several of its members violated the WARN Act by not giving them sixty days' advance notice of their terminations. They also assert violation of Ohio's Prompt Pay Act, Ohio Rev. Code § 4113.15; and violation of Ohio Rev. Code § 2307.60, which provides for civil liability for criminal acts. Pending before the Court are three motions for judgment on the pleadings under Civil Rule 12(c), made applicable in this adversary proceeding by Bankruptcy Rule 7012(b), filed by the Defendants.²The Plaintiffs have filed a cross-motion for partial judgment on the pleadings, and

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the parties have filed responsive and reply memoranda.³On August 19, 2026, the Court held a hearing (the "Hearing"), where the parties presented oral arguments regarding the Motions.⁴At the end of the Hearing, the Court asked whether any party wished to file any supplemental memoranda regarding the issues discussed, but all parties elected to stand on their existing memoranda and the arguments made at the Hearing. The Court therefore took the matter under in this adversary proceeding by AmplifyBio as though they had been made by the Liquidating Trustee and will refer to "AmplifyBio" only where its actions are relevant to this litigation. The Court notes that, although no party has objected or otherwise responded to the Substitution Notice, Civil Rule 25(c) (made applicable by Bankruptcy Rule 7025) provides that in the event of a transfer of interest, the action continues "by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3)." Fed. R. Civ. P. 25(c). The Liquidating Trustee is accordingly directed to file a motion for substitution (or to submit an agreed order if all parties agree) formally substituting the Liquidating Trustee for AmplifyBio. The term "Defendants" refers collectively to all the defendants (including the Liquidating Trustee).

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advisement.⁵ The Court has been tasked with determining the following overarching issues.

• Have the Plaintiffs sufficiently pled facts to overcome the Liquidating Trustee's Motion based on the affirmative defense of "liquidating fiduciary" under the WARN Act?

• Have the Plaintiffs sufficiently pled facts to overcome the Liquidating Trustee's Motion based on the affirmative defense of "faltering company" under the WARN Act?

• Have the Plaintiffs sufficiently pled facts to overcome Battelle's and the Investor Defendants' Motions regarding the single employer doctrine under the WARN Act?

• Have the Plaintiffs sufficiently pled facts to overcome the Defendants' Motions regarding the Plaintiffs' claims under Ohio law?

• Have the Defendants sufficiently pled bases to overcome the Plaintiffs' Cross- Motion which seeks a determination that the Defendants may not rely on the affirmative defense of "faltering company" under the WARN Act?

The determination of each of these issues involves the resolution of several procedural and substantive secondary issues that are presented by the parties. For the reasons below, the Motions are denied.

II. Procedural Matters A. Jurisdiction and Venue

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Amended General Order 05-02 entered by the United States District Court for the Southern District of Ohio, referring all bankruptcy matters to this Court. The Plaintiffs assert that this adversary proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B), and (O). FAC ¶ 9, Dkt. No. 31. Alternatively, the Plaintiffs assert that it is a core proceeding against the Liquidating Trustee, and

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the remaining claims are non-core but related to AmplifyBio's bankruptcy case. Id.¶ 10. And the Plaintiffs have consented to this Court entering final judgment. Pls.' Pretrial Statement ¶ II.E-F, Dkt. No. 60. Each of the Defendants assert that all claims are noncore "related to" proceedings under 28 U.S.C. § 157(c). Inv. Defs. Pretrial Statement ¶ II.F, Dkt. No. 58; Battelle Pretrial Statement ¶ II.F, Dkt. No. 56; Liquidating Trustee Pretrial Statement ¶ II.F, Dkt. No. 57. The Liquidating Trustee (but not the other Defendants) has consented to entry of final judgment by this Court. Liquidating Trustee Pretrial Statement ¶¶ II.F, II.H, Dkt. No. 57. Therefore, as to the claims against the Liquidating Trustee, this Court may enter a final judgment without the need for the Court to determine whether those claims are core or noncore.⁶

The Investor Defendants assert that this adversary proceeding is not a core proceeding and do not consent to this Court entering final judgment. Casdin Answer ¶ 9, Dkt. No. 48; Narya Answer ¶ 9, Dkt. No. 49; Viking Answer ¶ 9, Dkt. No. 50; Inv. Defs.' Pretrial Statement ¶ II.F, Dkt. No. 58. Battelle likewise denies that this action is a core proceeding and does not consent to entry of a final judgment by this Court. Battelle Answer ¶¶ 9-10, Dkt. No. 46; Battelle Pretrial Statement ¶ II.F, Dkt. No. 56. The Court agrees that, as to these Defendants, that this action is not a core proceeding. Given their lack of consent, this Court may not enter final judgment regarding Battelle and/or the Investor Defendants. 28 U.S.C. § 157(c)(1). But "it is clear that the bankruptcy

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court may handle all pretrial proceedings, including the entry of an interlocutory order dismissing fewer than all of the claims in an adversary complaint." CONSOL Energy Inc. v. Murray Energy Holding Co. (In re Murray Energy Holdings Co.), Case No. 19-56885, Adv. Pro. No. 20-2036, 2020 Bankr. LEXIS 1849, at *10 (Bankr. S.D. Ohio July 14, 2020) (quoting O'Toole v. McTaggart (In re Trinsum Grp., Inc.), 467 B.R. 734, 738-39 (Bankr. S.D.N.Y. 2012)). The Court therefore retains authority to supervise all pretrial proceedings and enter all pretrial orders, including ruling on potentially dispositive motions.

B. Impact of Motion to Withdraw Reference

The Investor Defendants (but not the Liquidating Trustee or Battelle) have filed a motion to withdraw the reference (the "MWR") of the claims against them from this Court to the District Court. Inv. Defs.' Am. Joint Mot. to Withdraw Reference, Dkt. No. 26. The Plaintiffs have opposed the MWR, and it was transmitted pursuant to Local Bankruptcy Rule 5011-1 to the District Court on September 18, 2025. Transmittal to District Ct., Dkt. No. 51.⁷ A motion to withdraw the reference "does not stay proceedings in a case or affect its administration. But a bankruptcy judge may, on proper terms and conditions, stay a proceeding until the motion is decided." Fed. R. Bankr. P. 5011(c). No party has requested a stay, and "the bankruptcy court has an obligation to manage its docket and generally will proceed with the case and the litigation unless a stay is requested and granted." 9A COLLIER ON BANKRUPTCY ¶ 5011.03 (Richard Levin & Henry J. Sommer eds., 16th ed.) (footnote omitted). As the Court noted at the Hearing, distributions under the confirmed plan of liquidation in this case cannot occur until this adversary proceeding (at least those claims asserted against the Liquidating Trustee) is resolved.

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Therefore, this Court will proceed unless and until the reference is withdrawn. Hr'g Tr. 5:3-5:9, Dkt. No. 100. Even if the reference is withdrawn, only the Investor Defendants have sought that relief, so the case will proceed in this Court as to the Liquidating Trustee and Battelle.

III. Factual Background⁸ Ms. Baker and Ms. Perry are two former employees of AmplifyBio who were laid off on April 4, 2025. FAC ¶¶ 13-14, Dkt. No. 31. AmplifyBio was a Delaware limited liability company with its principal place of business in Franklin County, Ohio, and was owned, operated, and controlled by Battelle and the Investor Defendants. Id. ¶ 15. Battelle is the "largest independent non-profit applied science and technology corporation in the world." Id. ¶ 16. Each of the Investor Defendants is a private equity firm that invests in and controls a variety of portfolio companies. Id. ¶¶ 17-19. Each of Battelle and the Investor Defendants "has owned and controlled AmplifyBio since 2021." Id. ¶¶ 16-19.

AmplifyBio was created in 2021 when it was spun off from Battelle. FAC ¶ 20, Dkt. No.

31. Battelle "retained de facto and de jure control over its spinoff by placing its key officers or directors on the board of directors for AmplifyBio." Id. ¶ 21. Specifically, two officers of Battelle were named as directors of AmplifyBio. Id. Battelle also received 10,000,000 Class A "units, or voting shares" of AmplifyBio. Id. As part of spinning off AmplifyBio, Battelle "solicited and obtained other outside investors. These other outside investors included Defendant Viking, Defendant Casdin, and Defendant Narya." Id. ¶ 23. The Investor Defendants "received de facto and de jure control over" AmplifyBio by having their principals serve on AmplifyBio's board of

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directors and/or receiving voting shares in AmplifyBio. Id. ¶ 24. Specifically, Viking received 6,250,000 Class A voting shares, Casdin received 2,000,000 Class A voting shares, and Narya received 500,000 Class A voting shares. Id. ¶ 25.⁹In addition, Viking and Casdin each appointed an officer or director to AmplifyBio's board of directors. Id.

Although it at first appeared to thrive after the spinoff, AmplifyBio had begun to struggle by 2024. It had a net loss of $74,000,000 for 2024. FAC ¶ 27, Dkt. No. 31. As a result, AmplifyBio began a "series of cost-cutting and restructuring initiatives, including workforce reductions, operational streamlining, and decommissioning of non-core assets. This included closing its California location and reducing its Ohio workforce by twenty-five percent." Id. But by February 2025, AmplifyBio only had "cash and cash equivalents of approximately $3,000,000 while its debt was over $30,000,000. It was also in default with its key secured lender, although it obtained a forbearance." Id. ¶ 28. This led Battelle and the Investor Defendants to hire Accordion Partners, LLC to provide restructuring advisory services, and to retain Kasey Rosado ("Ms. Rosado"), a senior managing director of Accordion, as AmplifyBio's Chief Restructuring Officer. Id.

Ms. Rosado's role was to "engage in a comprehensive review of strategic alternatives for"

AmplifyBio. FAC ¶ 28, Dkt. No. 31. "This included trying to secure additional capital through equity or debt financing, strategic partnerships, and out-licensing of proprietary technologies. It also included helping [Battelle, the Investor Defendants and AmplifyBio] explore possible sales of all or part of" AmplifyBio. Id. In early April 2025, the Defendants had determined that no additional capital was forthcoming, and they ceased seeking any for AmplifyBio. Instead, they

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focused solely on preserving the company's existing cash and assets while seeking one or more buyers. Id. ¶ 29. Battelle and the Investor Defendants "ordered" AmplifyBio to lay off substantially all of AmplifyBio's employees and to close the remaining facilities in Ohio. Id. ¶

30. Each facility employed at least fifty employees and this resulted in a total of 212 affected employees losing their jobs. Id.

On April 4, 2025, AmplifyBio sent a WARN Act notice to the State of Ohio and the mayors of the cities of New Albany and West Jefferson in Ohio. FAC ¶ 31 and Ex. 1, Dkt. No. 31.¹⁰The same day, AmplifyBio, at the order of Battelle and the Investor Defendants, sent termination letters to each of the 212 affected employees stating that their employment was being terminated effective immediately, and that they were not receiving either sixty days' advance notice or pay in lieu of notice under the WARN Act. Id. ¶ 32 and Ex. 2, Dkt. No. 31.¹¹Battelle and the Investor Defendants "ordered Defendant AmplifyBio" to not give sixty days' notice or pay in lieu of notice under the WARN Act. Id. ¶ 33. Instead, Battelle and the Investor Defendants ordered AmplifyBio to assert the "faltering company" defense. Id. The FAC alleges that the reason for this was so that Battelle and the Investor Defendants would "recoup more money, or more of their investment, when selling the business. In other words, rather than pay the employees what they were entitled to under the WARN Act and comply with the statute, Defendants Battelle, Viking, Casdin, and Narya wanted to pocket the affected employees' wages for themselves." Id. Following the layoffs, AmplifyBio retained a skeleton staff of twenty-six individuals while it continued to try to find a buyer. FAC ¶ 34, Dkt. No. 31. The purpose of retaining this skeleton

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staff was to maintain the value of AmplifyBio. Id. ¶ 35. "Stated plainly, Defendants Battelle, Viking, Casdin, and Narya did not believe they could find a buyer for all or part of Defendant AmplifyBio if they shut down the company completely." In April and May 2025, Battelle and the Investor Defendants operated AmplifyBio as a going concern while trying to find a buyer for its assets. Id. ¶ 36. When those efforts proved unsuccessful by May 2025, "Defendants Battelle, Viking, Casdin, and Narya decided to cease looking for buyers and instead order[ed] Defendant AmplifyBio to file for Chapter 11 bankruptcy." On May 16, 2025, AmplifyBio's board of directors signed a resolution directing it to file for bankruptcy. Id. Among the individuals who signed this resolution were Rohan Nirody from Viking and Shaun Rodriguez from Casdin. Id.at ¶ 37.¹² The Plaintiffs assert that Battelle and the Investor Defendants collectively had "ample resources available to them throughout this time to continue the operations of Defendant AmplifyBio without the need for additional capital from investors, outside financing, a sale of all or part of the company, or this bankruptcy filing." FAC ¶ 38, Dkt. No. 31. "Simply put, Defendants Battelle, Viking, Casdin, and Narya could have used their own money to continue the operations of Defendant AmplifyBio. Instead, however, they sought other investors or buyers to pay for operations rather than themselves." Id.

The FAC asserts three claims for relief. Count I asserts that the Defendants violated the WARN Act by not giving sixty days' advance notice of a "mass layoff" or "plant closing" or pay in lieu of that notice. FAC ¶¶ 48-53, Dkt. No. 31. The Plaintiffs allege that each of Battelle and the Investor Defendants was an "employer" who ordered a "mass layoff" or "plant closing" under the WARN Act and therefore was liable for damages under the WARN Act. Id. ¶ 48. Count II alleges that each Defendant is liable for a violation of Ohio law requiring prompt payment of

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wages, on the theory that the sixty days' back pay under the WARN Act constitutes wages under Ohio Rev. Code § 4113.15. Id. ¶¶ 55-60. Count III alleges that each Defendant is liable under Ohio Rev. Code § 2307.60, which imposes civil liability for criminal acts. Because violating § 4113.15 is a criminal misdemeanor under Ohio Rev. Code § 4113.99, the Plaintiffs assert that § 2307.60 imposes civil liability upon each Defendant. The Plaintiffs also assert that they are entitled to punitive damages and an award of attorney's fees under Ohio law. Id. ¶¶ 61-67.¹³

IV. Analysis A. The Civil Rule 12(c) Standard

"A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) generally follows the same rules as a motion to dismiss the complaint under Rule 12(b)(6)." Bates

v. Green Farms Condo. Ass'n, 958 F.3d 470, 480 (6th Cir. 2020). Therefore, when evaluating a motion for judgment on the pleadings, the Court "thus must follow the Supreme Court's changes to the pleading standards in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)." Bates, 958 F.3d at 480; HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). On a motion for judgment on the pleadings, "all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment as a matter of law." Hindel v. Husted,

875 F.3d 344, 346 (6th Cir. 2017) (citation modified); see also Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007) ("we construe the complaint in the light

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most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law."). Under the Twombly/Iqbal standard, the court must determine whether the plaintiff has stated a plausible claim for relief. Willman v. Att'y Gen. of U.S., 972 F.3d 819, 823 (6th Cir. 2020). And "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal,

556 U.S. at 678. The plausibility standard does not allow the Court to consider how likely it is that the plaintiff can prove the facts alleged. Twombly, 550 U.S. at 556 ("And, of course, a well- pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.") (citation modified). Courts should not give the presumption of truth to allegations that are "conclusory and bare." Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir. 2011). There must be "factual context that would render them plausible and thus entitle them to a presumption of truth at this stage in the litigation." Id. At the same time, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (quoting Erickson

v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)). "Rule 8 establishes implicitly, but with unmistakable clarity, that evidence of the claim is not required." Berk v. Choy,

607 U.S. 187, 193, 146 S. Ct. 546, 223 L. Ed. 2d 463 (2026) (citation modified). "By design, this system of pleading makes it relatively easy for plaintiffs to subject defendants to discovery—even for claims that are likely to fail." Id. at 194.

Questions of credibility and the weight of the evidence are not properly before the Court on a Civil Rule 12 motion. Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008). "This

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standard does not allow a court to weigh the parties' competing factual allegations and decide which ones to adopt." Miller v. Allstate Ins. Co., No. 3:23-CV-00355, 2024 WL 4762858, at *2 (S.D. Ohio Nov. 13, 2024) (citing Jones).

B. Supplementary Documents Which The Court May Consider

Before turning to the merits of the Defendants' Motions, the Court must first address what supplementary documents, outside the pleadings, it may consider in evaluating the Motions. The Defendants ask the Court to consider facts contained in two supplementary documents, along with the allegations in the FAC: the factual assertions made by AmplifyBio in the termination notices sent to the Plaintiffs (Exhibit 2 to the FAC) and the Declaration of Kasey Rosado (the

"Declaration") (Exhibit A to the Liquidating Trustee's Answer). Exhibit 2 consists of copies of the WARN Act notices (the "Notices" jointly and the "Notice" individually) sent by AmplifyBio to each of the Plaintiffs on April 4, 2025, advising them that their employment was being terminated immediately and offering AmplifyBio's explanation for why no prior notice was given.¹⁴FAC Ex. 2, Dkt. No. 31; Liquidating Trustee Mot. 8-9, Dkt. No. 52. The Declaration

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was filed in AmplifyBio's chapter 11 bankruptcy case on May 16, 2025.¹⁵The Plaintiffs quoted phrases from the Declaration in two paragraphs of the FAC but did not attach the Declaration as an exhibit. FAC ¶¶ 35-36, Dkt. No. 31. AmplifyBio (and by adoption the Liquidating Trustee) attached the Declaration to its answer.¹⁶Liquidating Trustee Answer Ex. A, Dkt. No. 41. The Liquidating Trustee argues that the Court should consider the Declaration in its entirety because the Plaintiffs "rely" upon the Declaration and that this reliance means that the Plaintiffs adopted the entire Declaration. Liquidating Trustee Reply 3-4, Dkt. No. 81. And he argues that the Court can consider the assertions contained in the Notices to establish an affirmative defense because it was attached as an exhibit to the FAC. Liquidating Trustee Mot. 7-9, Dkt. No. 52; Liquidating Trustee Reply 1, 14, Dkt. No. 81. The Plaintiffs claim that just because they attached the Notices and referenced the Declaration in the FAC does not automatically mean that they adopted the full contents of those documents as true. Pls.' Resp. 37-39, Dkt. No. 68. They assert that they dispute many of the facts that the Defendants ask the Court to draw from these documents. Id. 37-39.

Because a motion under Civil Rule 12 tests whether the complaint states a valid claim, it follows that the primary focus is on the complaint itself. Berk, 607 U.S. at 193 ("When evaluating Despite our efforts to obtain additional funding, we have been unsuccessful, and the company has made the difficult decision to file for Chapter 11 bankruptcy and liquidate AmplifyBio, LLC's assets. Employee separations are effective immediately.

FAC Ex. 2. The sole reference to the Notice in the FAC states: "Also on April 4, 2025, Defendants Battelle, Viking, Casdin, and Narya ordered Defendant AmplifyBio to send termination letters to all 212 affected employees stating (a) they were being fired effective immediately and (b) they were not receiving sixty days of advance notice or pay-in- lieu-of-notice as required by the WARN Act. True and accurate copies of the letters received by Plaintiffs are attached as Exhibit 2 to this Complaint." FAC ¶ 32, Dkt. No. 31.

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whether a plaintiff has stated a claim, the court cannot consider 'matters outside the pleadings.' Rule 12(d).¹⁷The court instead asks only whether the complaint's factual allegations, if taken as true, 'state a claim to relief that is plausible on its face.'") (citation omitted). But certain classes of documents can be considered without converting the motion to a summary judgment motion. For example, courts may consider any exhibits attached to the complaint. Hodges v. City of Grand Rapids, 139 F.4th 495, 510 (6th Cir. 2025) (citation omitted). And they may consider documents that are referenced in the complaint if they are central to the plaintiff's claims. Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 441 (6th Cir. 2012). "In this context, a document is central to the plaintiff's claim where the complaint's legal sufficiency depends upon the document." Hodges,

139 F.4th at 513. But even when the court can consider certain materials under these rules, "'considering' the attachments does not necessarily mean that all statements set forth therein must be accepted as true." Core v. Champaign Cty. Bd. of Cty. Comm'rs, No. 3:11-cv-166, 2012 U.S. Dist. LEXIS 105956, at *7 (S.D. Ohio July 30, 2012) (citing Jones, 521 F.3d at 561). As the Sixth Circuit has explained:

We have recognized, however, that it is not always appropriate to assume everything in an exhibit is true. In particular, although a blanket adoption rule makes sense in the context of an attached contract or loan agreement because the contract represents an agreement between two or more parties to which the law binds them, the rule makes much less sense when, as is the case here, the exhibit is not a legally dispositive document. When an exhibit is a contract, it is reasonable to consider the entire document because the contract has independent legal significance. Here, however, Outokumpu is citing the EC's findings not merely to prove their existence but rather to prove the truth of the matters asserted within them. To permit such a tactic would allow Outokumpu impermissibly to question the evidentiary foundation of Carrier's complaint, thereby depriving Carrier of the presumption of truth to which it is entitled at this stage of litigation. Indeed, Carrier should be free to draw facts from the EC decision to provide a "starting point" and

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then use those facts to construct a theory that differs from or even contradicts that of the EC.

Carrier Corp., 673 F.3d at 441-42 (citation modified). Thus, where a document is not legally dispositive, the plaintiff is not bound by the entire document even where the plaintiff has "'cut- and-pasted' many sections" of the document into the complaint. Id. at 441, 443; see also Brown

v. Whirlpool Corp., 996 F. Supp. 2d 623, 635 (N.D. Ohio 2014) (refusing to hold that the plaintiff adopted environmental reports in their entirety even where they had "selectively quoted" from them, and even though the court was "mindful of the tension between certain allegations in the complaint, which for present purposes I accept as true, and the findings in Whirlpool's exhibits, which call into question a fair number of plaintiffs' allegations."). This limitation is grounded in the concerns underlying Civil Rule 12(d):

An animating concern behind Rule 12(d) is that, where the court considers extraneous material (even public records) on a motion to dismiss, there is no way for an opposing party, prior to the issuance of the court's decision, to register his or her disagreement with the facts in the document of which the court was taking notice. To put a finer point on it, there is no way for the opposing party to develop and present evidence to support their disagreement with the facts presented in the extra-complaint material.

Hodges, 139 F.4th at 510 (citation modified). Considering such material as true "flouts basic pleading rules" because it permits the defendant to attack the plaintiff's version of the facts at the pleadings stage with the defendant's own conflicting story. Id. at 511 (citing Blackwell, 123 F.4th at 487). But the pleadings stage is not the time to resolve factual disputes - the defendants get to present their side of the story later, at summary judgment or at trial. Hodges, 139 F.4th at 513. Applying these principles, the Court declines to treat the contents of the Declaration and the Notices as true. As for the Declaration, while the FAC references a handful of statements from the Declaration, the FAC's legal sufficiency does not depend on the Declaration. Hodges, 139 F.4th at 513. The references to the Declaration could be removed from the FAC without impacting

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the claims it asserts. This can be seen from the paragraphs of the FAC that reference the Declaration:

35. The purpose of these twenty-six employees was to maintain the business continuity of, and thus value of, Defendant AmplifyBio while Defendants looked for one or more buyers. As Rosado put it in a declaration submitted to this Court, these twenty-six employees would "ensure smooth sale processes." Stated plainly, Defendants Battelle, Viking, Casdin, and Narya did not believe they could find a buyer for all or part of Defendant AmplifyBio if they shut down the company completely.

36. For these reasons, between April of 2025 and May of 2025, Defendants continued, as Rosado put it in a declaration to this Court, to operate Defendant AmplifyBio as a going concern while they "explored various other potential opportunities to sell certain of their assets." However, "none of these opportunities materialized."

FAC ¶¶ 35-36, Dkt. No. 31. As can be seen, the allegations of the FAC stand on their own, and while they reference the Declaration to illustrate the point, the Plaintiffs' claims "exist 'independent' of the information in these exhibits." Blackwell, 123 F.4th at 487. The quotations of the language in the Declaration could be removed and the essence of the allegation - that even after April 4, 2025, AmplifyBio continued operating with a skeleton staff - would still allege the same point.

Only two paragraphs of the FAC even reference the Declaration, and those references to the Declaration are prefaced with "as Rosado put it," making clear that the quotations were intended as examples. Such minimal references to the Declaration indicate that it is not central to the FAC. VCST Int'l B.V. v. BorgWarner Noblesville, LLC, 142 F.4th 393, 403 (6th Cir. 2025) ("And while the complaint made passing reference to the email, VCST's claims in no way depend on it.") (citation modified); see also Byers-Robson v. Med. Mktg. Sols. Grp., LLC, Case No. 1:24- cv-496, 2025 U.S. Dist. LEXIS 182863, at *15-16 (S.D. Ohio Sept. 17, 2025) ("Here, although

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Plaintiffs make some references to the employment agreement, none of these references are central to any of Plaintiffs' claims.").

Furthermore, the Declaration is not a legally dispositive document such as a contract that defines legal rights and obligations of the parties. It is purely an evidentiary document. The Plaintiffs therefore did not adopt the Declaration in full merely by referring to it in the FAC. Carrier Corp., 673 F.3d at 441. Instead, the Plaintiffs were "free to draw facts from" the Declaration without being bound to the entire document. Carrier Corp., 673 F.3d at 441-42; Jones,

521 F.3d at 561 (holding that references in the complaint to transcripts of interviews given by the defendants did not permit the entire transcripts to be considered for their truth). The Liquidating Trustee argues that it would be unfair to permit the Plaintiffs to rely on parts of the Declaration without permitting the Defendants to rely on the rest. Hr'g Tr. 8:14-8:22. But that is exactly what Carrier Corp. permits. The essence of Paragraphs 35-36 of FAC is that AmplifyBio did not immediately move to full liquidation on April 4, 2025, when the Notices were sent to the 212 employees, but rather continued to operate as a going concern to try to preserve its value for potential buyers. This concept is contained in other paragraphs of the FAC as well. The FAC alleges that after April 4, 2025, all the Defendants "wanted to continue the business operations of Defendant AmplifyBio with a skeleton staff while they tried to sell all or part of the company. As a result, while Defendant AmplifyBio laid off substantially all its employees, it maintained the employment of twenty-six individuals." FAC ¶ 34, Dkt. No. 31. And it alleges that this effort continued at least until the Petition Date, six weeks after the Plaintiffs were terminated. Id. ¶ 37. Indeed, it alleges that AmplifyBio continued to operate as a going concern even after the Petition Date. Id. ¶ 8. None of these allegations rely on the Declaration, and there is no unfairness to the Liquidating Trustee. Mere disagreement with the allegations of a complaint

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is no reason to allow a defendant to bring in material from outside the complaint to seek dismissal. Blackwell, 123 F.4th at 487 ("The City Officials thus ask us to disregard the normal "presumption of truth" that we must give to a complaint's well-pleaded facts based on their own conflicting story about the investigation . . . . . This approach flouts basic pleading rules."); Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1041 (6th Cir. 2022) ("But as we have already explained, we cannot settle a factual dispute on a motion to dismiss, where we instead must take the complaint's well-pleaded allegations as true.").

The Liquidating Trustee may believe that the Plaintiffs have told an incomplete story, but at the pleading stage, "we do not require a complete story; we require a plausible one." Hodges,

143 F.4th at 506. The Liquidating Trustee "will have an opportunity to tell [his] side of the story by filling in the contours of [the Plaintiffs'] allegations at summary judgment or at trial, but for now, [the Plaintiffs] are the master of [their] complaint." Id. at 513. The same principles and analysis apply to the factual assertions in the Notices. The Notices were attached as Exhibit 2 to the FAC, so the Court can consider them. But as with the Declaration,

"considering" the Notices does not mean treating everything in them as true. The Notices are not legally dispositive. As discussed above, where a document is not legally a dispositive document, merely attaching it as an exhibit does not adopt it in full unless the complaint makes clear that is the plaintiff's intention. Jones, 521 F.3d at 561 (holding that attaching transcripts of interviews with defendant police officers to complaint did not adopt everything in those transcripts as true); see also Miller v. Allstate Ins. Co., No. 3:23-CV-00355, 2024 WL 4762858, at *2 (S.D. Ohio Nov. 13, 2024) (declining to treat the defendant's pre-litigation correspondence as true even though it was extensively referenced in the complaint.); Core v. Champaign Cty. Bd. of Cty. Comm'rs, No. 3:11-cv-166, 2012 U.S. Dist. LEXIS 105956, at *8-9 (S.D. Ohio July 30, 2012) (same). Therefore,

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"we treat the exhibit as an allegation that [AmplifyBio] made the statements in the [Notices] and we treat that allegation as true." Jones, 521 F.3d at 561. "We do not accept as true, however, that [AmpifyBio's] statement is accurate or true; this is a question of credibility and weight of the evidence that is not before a court considering a motion [for judgment on the pleadings]." Id. Ultimately, whether the Court must regard as true the entire contents of the Declaration and the Notices is readily resolved by Carrier Corp. Neither the Declaration nor the Notices are legally dispositive and therefore the Plaintiffs were free to use portions of them without being bound to adopt the entire document in full. Carrier Corp., 673 F.3d at 442. Considering those documents as true in their entirety would allow the Defendants "impermissibly to question the evidentiary foundation of [the Plaintiffs'] complaint, thereby depriving [the Plaintiffs] of the presumption of truth to which [they are] entitled at this stage of litigation." Id. Accordingly, to the extent that the Defendants ask the Court to consider the truth of the contents of the Declaration and the Notice, the Court excludes them from its consideration. To the extent relevant, the Court will consider the existence of the Declaration and the Notice and that these documents say what they say. But it cannot treat the contents of these documents as true. Jones, 521 F.3d at 562; Carrier Corp., 673 F.3d at 442. The Court now turns to the merits of the Defendants' Motions.

C. The WARN Act

The WARN Act was "adopted in response to the extensive worker dislocation that occurred in the 1970s and 1980s." Hotel Emps. & Rest. Emps. Int'l Union Local 54 v. Elsinore Shore Assocs., 173 F.3d 175, 182 (3d Cir. 1999). "In many cases, businesses shut down or laid off workers after giving them little or no notice, a practice that the WARN Act was designed to eliminate." Pennington v. Fluor Corp., 19 F.4th 589, 594 (4th Cir. 2021) (citation omitted).

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The WARN Act ordinarily requires sixty days' advance notice of plant closings or mass layoffs. See 29 U.S.C. § 2102(a). The purpose of the Act is to extend "protection to workers, their families and communities by requiring employers to provide notification 60 calendar days in advance of plant closings and mass layoffs. Advance notice provides workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training or retraining that will allow these workers to successfully compete in the job market. WARN also provides for notice to State dislocated worker units so that dislocated worker assistance can be promptly provided."

Watson v. Michigan Indus. Holdings, Inc., 311 F.3d 760, 763 (6th Cir. 2002) (quoting 20 C.F.R. § 639.1(a)). When an employer does not give the required sixty-day notice of a plant closing or mass layoff, an aggrieved employee may sue the employer for back pay and attorney's fees. 29 U.S.C. § 2104(a).

The Department of Labor has issued implementing regulations (the "Regulations"). 20 C.F.R. §§ 639.1-639.10.¹⁸Those regulations were accompanied by commentary from the Secretary of Labor explaining the Regulations and detailing how they were modified during the notice-and-comment period after the Regulations were initially proposed. Final Rule, Worker Adjustment and Retraining Notification, 54 Fed. Reg. 16042 (1989) (the "Commentary"). The parties each rely on the Regulations and/or the Commentary to support their arguments. See, e.g., Liquidating Trustee Mot. 4, 7-8, Dkt. No. 52; Battelle Mot. 6-7, Dkt. No. 54; Investor Defs.' Mot. 7-8, Dkt. No. 59; Pls.' Resp. 12, 21, 27-29, 34, 35, Dkt. No. 68. And at the Hearing, all parties agreed that the Regulations and Commentary are valid and applicable here. Hr'g Tr. 22:12 - 23:3, Dkt. No. 100. Since no party has presented any dispute over the principles set forth in the Regulations and Commentary, the Court will consider the Regulations and the Commentary as part of the governing law.

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Familiar principles of interpretation govern consideration of the WARN Act, the Regulations and the Commentary. "A fundamental canon of statutory construction is that 'when interpreting statutes, the language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.'" Saginaw Chippewa Indian Tribe v. Blue Cross Blue Shield, 32 F.4th 548, 557 (6th Cir. 2022) (quoting Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir. 2007)). "The same logic applies to the interpretation of regulatory language." Saginaw Chippewa Indian Tribe, 32 F.4th at 557. "Because the WARN Act is remedial legislation, its exceptions are to be construed narrowly." Pearce v. Faurecia Exhaust Sys., Inc., 529 F. App'x 454, 457 (6th Cir. 2013)) (quoting Local Union 7107 v. Clinchfield Coal Co., 124 F.3d 639, 640-41 (4th Cir. 1997)); Bledsoe v. Emery Worldwide Airlines, Inc., No. 3:02cv069, 2008 U.S. Dist. LEXIS 118616, at *50-51 (S.D. Ohio Mar. 24, 2008) (applying "the canon of statutory interpretation that 'remedial statutes should be construed broadly to extend coverage and their exclusions or exceptions should be construed narrowly.'") (quoting Cobb v. Contract Transp., Inc., 452 F.3d 543, 559 (6th Cir. 2006)). This principle is also reflected in the Regulations. See 20 C.F.R. § 639.9(a) ("The exception under section 3(b)(1) of WARN, termed 'faltering company,' applies to plant closings but not to mass layoffs and should be narrowly construed.").

1. Prima Facie Case Under the WARN Act

The WARN Act's operative provision is simple. "An employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order . . . to each affected employee." 29 U.S.C. § 2102(a)(1).¹⁹"Any employer who orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each

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aggrieved employee who suffers an employment loss as a result of such closing or layoff for" back pay and benefits. 29 U.S.C. § 2104; McKinney v. Carlton Manor Nursing & Rebab. Ctr., Inc., 868 F.3d 461, 464 (6th Cir. 2017). There are certain statutory exceptions to the notice requirement. An "employer" is any "business enterprise" that employs 100 or more full-time employees.

29 U.S.C. § 2101(a)(1)(A). A "plant closing" is "the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees." 29 U.S.C. § 2101(a)(2). A

"mass layoff" means a reduction in force which (A) is not the result of a plant closing and (B) results in employment loss at the single site of employment during any 30-day period for (i) at least 33 percent of the employees and 50 total employees or (ii) at least 500 employees. 29 U.S.C. § 2101(a)(3). "Affected employees" means "employees who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer." 29 U.S.C. § 2101(a)(5). An "employment loss" means (subject to exclusions not applicable here) "(A) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of more than 50 percent during each month of any 6-month period." 29 U.S.C. § 2101(a)(6). In his memoranda, the Liquidating Trustee did not dispute whether the FAC asserts a prima facie case against him. Rather, the Liquidating Trustee seeks judgment on the pleadings based on two affirmative defenses, the "liquidating fiduciary" and the "faltering company" exceptions to the WARN Act. In their briefs, the parties agreed that these are affirmative defenses. Pls.' Resp.

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21, 27-28, Dkt. No. 68; Liquidating Trustee's Reply 1, 3, 5-7, 11-13, Dkt. No. 81 (referring to these exceptions as "defenses.").²⁰

A defendant seeking dismissal at the pleading stage based on an affirmative defense faces a particularly high burden, because a plaintiff generally is not required to plead the lack of affirmative defenses to state a valid claim. VCST Int'l B.V. v. BorgWarner Noblesville, LLC, 142 F.4th 393, 399 (6th Cir. 2025). For this reason, a motion for judgment on the pleadings, "which considers only the allegations in the complaint, is generally an inappropriate vehicle for dismissing a claim based upon the statute of limitations." Cataldo v. United States Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). Nonetheless, a court may still grant judgment on the pleading based on an affirmative defense if the complaint's allegations establish the affirmative defense as a matter of law. VCST Int'l, 142 F.4th at 399; see also Barney v. PNC Bank (In re Estate of Barney), 714 F.3d 920, 926 (6th Cir. 2013) ("if the plaintiffs' complaint contains facts which satisfy the elements of the defendant's affirmative defense, the district court may apply the affirmative defense."). Dismissal based on an affirmative defense is only warranted "when the facts establishing the defense are definitively ascertainable from the pleadings and conclusively establish the affirmative

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defense." Walburn v. Lockheed Martin Util. Servs., 443 F. App'x 43, 47 (6th Cir. 2011) (emphasis added) (citing Hensley Mfg. v. ProPride, Inc., 579 F. 3d 603, 613 (6th Cir. 2009)).

2. Liquidating Fiduciary Defense

The liquidating fiduciary defense is not explicitly set forth in the text of the WARN Act or in the Regulations. Rather, it is based upon a passage in the Commentary. Newman v. Crane, 435 F. Supp. 3d 834, 839 (N.D. Ill. 2020) ("This exception does not derive from the statute itself, but rather comes from the Department of Labor's response to public comments suggesting that fiduciaries in bankruptcy proceedings should be excluded as employers under the Act.") (citing the Commentary, 54 Fed. Reg. at 16,045). In the Commentary, the Department of Labor stated:

DOL Agrees that a fiduciary whose sole function in the bankruptcy process is to liquidate a failed business for the benefit of creditors does not succeed to the notice obligations of the former employer because the fiduciary is not operating a

"business enterprise" in the normal commercial sense. In other situations, where the fiduciary may continue to operate the business for the benefit of creditors, the fiduciary would succeed to the WARN obligations of the employer precisely because the fiduciary continues the business in operation. Commentary, 54 Fed. Reg. at 16,045.

Although the parties do not dispute the existence of the liquidating fiduciary defense, they dispute its scope. The Plaintiffs, relying on the plain language of the Commentary, assert that it should be limited to those situations it addressed - where the plant closing or mass layoff occurs after the bankruptcy filing by an entity that is subject to fiduciary duties imposed by bankruptcy law. Pls.' Response 20-22, Dkt. No. 68. The Plaintiffs also argue that even under the broader version of the defense relied upon by the Liquidating Trustee, they have not alleged facts that conclusively establish the defense. Id. The Liquidating Trustee insists that the liquidating fiduciary defense is not limited to situations where the mass layoff or plant closing occurs after a bankruptcy case has been filed. Rather, he asserts that the liquidating fiduciary defense applies whenever the

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employer has ceased normal operations prior to terminating its employees. Liquidating Trustee Reply 5-7, Dkt. No. 81.

The plain language of the Commentary requires a bankruptcy case, a fiduciary in the bankruptcy case that has assumed responsibility for the debtor's operations, and that the fiduciary's sole role in the bankruptcy case is to liquidate the debtor's assets. Commentary, 54 Fed. Reg. at 16,045. Here, AmplifyBio terminated its employees on April 4, 2025, but did not file chapter 11 until about six weeks later, on May 16, 2025. Thus, at the time of the Plaintiffs' termination, AmplifyBio did not satisfy the test for the liquidating fiduciary defense under the Commentary. The Liquidating Trustee argues that this Court should follow caselaw applying a broader version of the defense that focuses solely upon whether the debtor had ceased its income-producing operations prior to terminating its employees. Liquidating Trustee Mot. 4-5, Dkt. No. 52 (citing Conn v. Dewey & LeBoeuf LLP (In re Dewey & LeBoeuf LLP), 487 B.R. 169, 175 (Bankr. S.D.N.Y. 2013) ("But not all cases applying the principle involve post-petition terminations, and the petition date is not determinative of the outcome in all cases.")). The Liquidating Trustee relies upon Thielmann v. MF Glob. Holdings Ltd. (In re MF Glob. Holdings Ltd.), 481 B.R. 268 (Bankr. S.D.N.Y. 2012). The court in MF Glob. Holdings Ltd. held that the primary inquiry for the defense is whether the company has ceased operating as a going concern such that it was no longer engaging in its ordinary revenue-generating activities at the time it terminated its employees. 481 B.R. at 280; see also Stewart v. Giuliano (In re Start Man Furniture, LLC), 647 B.R. 116 (D. Del. 2022) (same).

Other courts have expressed skepticism about applying the defense beyond that provided in the Commentary. As stated above, regulatory language is to be given its plain meaning. Saginaw Chippewa Indian Tribe, 32 F.4th at 557. That plain meaning requires a bankruptcy case

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and a layoff ordered by a bankruptcy fiduciary. In re World Mtkg. Chi., LLC, 564 B.R. 587, 601 (Bankr. N.D. Ill. 2017) ("It is just those plain words [of the Commentary] that should control. After all, without them, no exception would exist. To go beyond the plain words here would be to legislate from the bench."). The broad conception of the liquidating fiduciary defense asserted here by the Liquidating Trustee "runs the risk of allowing circumstances well beyond those intended by the Department of Labor to vitiate the protections afforded employees by the WARN Act." Id. at 603; see also Int'l Bhd. of Teamsters v. Yellow Corp. (In re Yellow Corp.), No. 25- 307-JLH, 2026 U.S. Dist. LEXIS 143306, at *16 n.7 (D. Del. June 29, 2026) ("This Court is skeptical of the proposition that a company can rely on the liquidating fiduciary exception when it lays off its employees before entering bankruptcy proceedings."); Law v. Am. Cap. Strategies, Ltd., Civ. No. 3:05-0836, 2007 U.S. Dist. LEXIS 5936, at *49 (M.D. Tenn. Jan. 26, 2007) ("To accept American Capital's assertion that it was a liquidating fiduciary under the facts of this case would be to allow the liquidating fiduciary exception to swallow the rule . . . . Such an interpretation would eviscerate the WARN Act and be an expansion of an exception which is to be construed narrowly."). The Court shares these reservations.

For now, however, the Court need not definitively rule on the scope of the defense. Under the Liquidating Trustee's version of the defense, he is entitled to judgment on the pleadings, if the FAC establishes, as a matter of law, that AmplifyBio had terminated its revenue-producing activities before it terminated its employees on April 4, 2025. But FAC alleges that AmplifyBio continued operating as a going concern after April 4, 2025, utilizing a skeleton staff, until the bankruptcy filing six weeks later and for some time after the Petition Date. FAC ¶¶ 8, 36, Dkt. No. 31.²¹While the FAC alleges that AmplifyBio's operations changed on April 4, 2025, the FAC

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does not conclusively establish that AmplifyBio had entered a liquidation mode to the exclusion of revenue-generating activity.

The Liquidating Trustee asserts that the skeleton staff retained after April 4, 2025, was engaged in "classic liquidation activities." But there is nothing in the FAC that definitively alleges exactly what the skeleton staff was doing. And the question is not whether AmplifyBio had taken a significant step towards liquidation, but rather the nature of its ongoing activities. For example, in Stewart v. Giuliano (In re Start Man Furniture, LLC), 647 B.R. 116 (D. Del. 2022), the court held that the debtor had not become a liquidating fiduciary even where it had filed chapter 11 and commenced going out of business sales at some of its locations. The court reasoned that although those sales were a "big step" towards liquidation, the debtor "continued conducting retail sales which had been, and remain, precisely the commercial business they had always engaged in—and for the same purpose—to generate cash revenue." Smart Man, 647 B.R. at 130. The fact that those sales could be characterized in a broad sense as part of a liquidation did not change that conclusion. Id. at 131. "[T]he relevant inquiry is not whether a fiduciary has a plan to liquidate. The question is whether the act of liquidation included the running of operations." Id. It thus does not matter that AmplifyBio took a large step towards liquidation when it laid off most of its employees on April 4, 2025. What matters is whether AmplifyBio had ceased all business operations and revenue-producing activity. Since the FAC does not provide any allegation regarding the business operation of Amplify after the termination of its employees, judgment on the pleadings based on the affirmative defense of liquidating fiduciary is not appropriate. Hr'g Tr. 58:19 - 58:23. But these allegations were not referenced in the FAC or any of the Plaintiffs' briefing, and as noted in the previous footnote, the Court will not consider matters raised for the first time at a hearing. The Court has not considered the statements made at the Hearing by counsel for Plaintiffs in reaching this decision.

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3. Faltering Company Defense

In contrast to the liquidating trustee defense, the faltering company defense is explicitly set forth in the text of the WARN Act.

(b)Reduction of notification period

(1) An employer may order the shutdown of a single site of employment before the conclusion of the 60-day period if as of the time that notice would have been required the employer was actively seeking capital or business which, if obtained, would have enabled the employer to avoid or postpone the shutdown and the employer reasonably and in good faith believed that giving the notice required would have precluded the employer from obtaining the needed capital or business.

. . .

(3) An employer relying on this subsection shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.

29 U.S.C. § 2012(b). The Regulations, 20 C.F.R. § 639.9, set forth four substantive elements of the faltering company defense: (1) An employer must have been actively seeking capital or business at the time that 60-day notice would have been required, by identifying specific actions taken to obtain capital or business; (2) there must have been a realistic opportunity to obtain the financing or business sought; (3) the financing or business sought must have been sufficient, if obtained, to have enabled the employer to avoid or postpone the shutdown; and (4) the employer reasonably and in good faith believed that giving the required notice would have precluded the employer from obtaining the needed capital or business. Law, 2007 U.S. Dist. LEXIS 5936, at *26-27 (citing 20 C.F.R. § 639.9). Nothing in the FAC conclusively establishes any of these elements.²²

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First, to terminate employees on April 4, 2025, AmplifyBio had to give notice no later than sixty days prior, or February 3, 2025. 20 C.F.R. § 639.9(a)(1). There is nothing in the FAC that definitively establishes that AmplifyBio was actively seeking capital or business on February 3, 2025. At the Hearing, the Liquidating Trustee pointed to Paragraph 28 of the FAC as support of his position. Hr'g Tr. 29:22 - 31:14. Paragraph 28 alleges that AmplifyBio retained Accordion Partners, LLC and Ms. Rosado, to attempt to "secure additional capital through equity or debt financing, strategic partnerships, and out-licensing of proprietary technologies." FAC ¶ 28, Dkt. No. 31. But the FAC does not allege, either explicitly or by implication, the specific elements required by 20 C.F.R. § 639.9. The FAC does not conclusively establish that AmplifyBio was actively seeking new capital or business on February 3, 2025, as required by 20 C.F.R. § 639.9(a)(1).²³Second, nothing in the FAC conclusively establishes that there was a realistic opportunity to obtain the financing or business sought, as required by 20 C.F.R. § 639.9(a)(2). Nor does anything in the FAC address whether any such financing or new business would have been sufficient to avoid or postpone the shutdown for a reasonable period of time, as required by 20 C.F.R. § 639.9(a)(3).

Finally, nothing in the FAC conclusively establishes that AmplifyBio reasonably and in good faith believed that giving a timely notice would have precluded it from obtaining the new capital or business. "This condition may be satisfied if the employer can show that the financing or business source would not choose to do business with a troubled company or with a company whose workforce would be looking for other jobs." 20 C.F.R. § 639.9(a)(4). It is not enough to rely upon a generic concern that giving notice could throw the workforce into disarray and

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discourage any potential source of capital or business. Rather, the reasonable belief must be based on some definitive indication from the potential source of financing or business. Id.; Childress v. Darby Lumber Co., 126 F. Supp. 2d 1310, 1317 (D. Mont. 2001). Nothing in the FAC establishes that this was the case. More generally, nothing in the FAC establishes that AmplifyBio in fact believed that giving timely notice would have precluded it from obtaining new business or financing, much less that this belief was both reasonable and held in good faith. Thus, the FAC does not allege sufficient facts that conclusively establish any of the substantive elements of the faltering company defense. Therefore, as to the Liquidating Trustee's Motion on the faltering company defense, the Court need not reach the sufficiency of the Notices themselves. The Liquidating Trustee's Motion must be denied because nothing in the FAC establishes any of the elements of the defense.

D. The Plaintiffs' Cross-Motion

Considering a plaintiff's motion for judgment on the pleadings effectively requires that the defendant's answer admit some fact that concedes a claim or negates an affirmative defense. United Food & Commercial Workers, Local 1995 v. Kroger Co., 51 F.4th 197, 202 (6th Cir. 2022) ("When the plaintiff, as opposed to the defendant, moves for judgment on the pleadings . . . we ask whether the plaintiff's petition, stripped of those allegations which are denied by the defendant's answer, would leave the petition stating a cause of action against the defendant."). In the Plaintiffs' Cross-Motion, they reason that the Notices needed to comply with various procedural requirements, and that since there is no dispute as to the Notices' authenticity, the Court can find as a matter of law that the Liquidating Trustee is not entitled to assert the faltering company defense because the Notices were deficient as a matter of law. There is authority for this, as some courts have held that a defective notice forecloses reliance on the faltering company

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defense. Carroll v. World Mktg. Holdings, LLC, 418 F. Supp. 3d 299, 313 (E.D. Wis. 2019) ("[T]he defendants' failure to give proper shortened notice precludes them from relying on the statutory exceptions at all"). The Plaintiffs' arguments might in fact prove to be true, but the requirements for shortened notice are fact-specific and therefore the Court cannot determine the Notices' sufficiency simply by considering the Notices themselves without the benefit of the evidence.

When a party relies on the faltering company defense, the WARN Act requires that it still must have given "as much notice as is practicable." 29 U.S.C. § 2102(b)(3). And it must provide a brief statement explaining the reason for the shortened notice period. Id. Though it is a "brief statement," the notice must be specific. 20 C.F.R. § 639.7(a)(1). This means that the notice must provide the factual circumstances that led to the reduced notification period. D'Amico v. Tweeter Opco, LLC (In re Tweeter Opco, LLC), 453 B.R. 534, 547 (Bankr. D. Del. 2011) ("An employer who wants to reduce the notification period must comply with the clear statutory requirement that the termination notice contain an explanation for the shortened time.") (quoting Organogenesis, Inc. v. Andrews, 331 B.R. 500, 502 (D. Mass. 2005)).

The "brief statement" required by WARN Act must "set forth the underlying factual events which led to the shortened period." Alarcon v. Keller, 27 F.3d 386, 389-90 (9th Cir. 1994). The court reasoned that the notice should provide employees with information that helps them evaluate whether the notice period was properly shortened. Id. Furthermore, "[i]f an employer must set forth specific facts in its notice in order to rely on a statutory exception, it is more difficult for one who does not truly qualify for the exception to invoke it. It is therefore more likely that employees will receive the full sixty-day notice period in the majority of cases in which the statutory exceptions do not apply." Grimmer v. Lord Day & Lord, 937 F. Supp. 255, 257 (S.D.N.Y. 1996);

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see also Czyzewksi v. Jevic Transp. Inc. (In re Jevic Holding Corp.), 496 B.R. 151, 158 (Bankr. D. Del. 2013) ("Congress intended that the 'brief statement' describing the basis for the shortened notice be 'something more than a citation to the statute or a conclusory statement summarizing the statutory provision.'") (quoting D'Amico v. Tweeter Opco, LLC (In re Tweeter Opco, LLC), 453 B.R. 534, 547 (Bankr. D. Del. 2011)).

The parties dispute whether the Notices complied with the requirements for what a notice must contain. The parties focus their debate upon the fact that the Notices largely parrot the language of the WARN Act and/or the Regulations but provide little in the way of specific facts relevant to AmplifyBio's circumstances. At the Hearing, the Liquidating Trustee emphasized Yellow Corp., ___ B.R. at ___, 2026 U.S. Dist. LEXIS 143306, at *21-24, where the district court upheld a notice that gave less detail than the Notices did here. Hr'g Tr. 62:10-16. And it is true that the notices in Yellow Corp. largely parroted the statutory language. The Plaintiffs on the other hand rely on other cases that require greater specificity. Pls.' Resp. 31-32, Dkt. No. 68 (collecting cases).

The parties also debate whether the Notices needed to specifically refer to the WARN Act and to the faltering company exception. The Plaintiffs cite cases holding that a shortened notice under the WARN Act must, at a minimum, reference the WARN Act and the defense relied on to shorten the notice period. Weekes-Walker v. Macon Cnty. Greyhound Park, Inc., 877 F. Supp. 2d 1192, 1208 (M.D. Ala. 2012), rev'd in part on other grounds, 725 F.3d 1276 (11th Cir. 2013); Newman v. Crane, 435 F. Supp. 3d 834, 842-43 (N.D. Ill. 2020). The Liquidating Trustee could not cite any cases specifically holding that a shortened notice was adequate where it did not specifically mention the WARN Act or the faltering company defense. Even in Yellow Corp., the termination notices mentioned the WARN Act and the faltering company defense. Yellow Corp.,

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___ B.R. at ___, 2026 U.S. Dist. LEXIS 143306, at *10-11 ((finding that the notice specifically referenced the "WARN Act" and the "faltering company" exception, among other defenses). The court therefore held that the notice was sufficient. Id. at *22 ("The notice makes clear which statutory exception is being relied upon—the 'faltering company' exception—and it explains that Yellow had hoped to complete one or more transactions and secure funds and business to prevent the closing of its locations but was unable to do so.").

The Plaintiffs assert that the Court can determine, solely from the face of the Notices, that they were inadequate. And the Plaintiffs assert that, as a matter of law, a notice that does not even mention the WARN Act or the faltering company exception cannot ever be an adequate basis for shortening the notice period. Pls.' Resp. 31, Dkt. No. 68. But as with the other issues, the Court is not convinced that it is appropriate to decide these issues on the limited record available. The WARN Act requires as much notice as is practicable, and that issue is difficult to ascertain at the pleadings stage. The Court can speculate about why the Notices are worded as they are, and it can speculate about what the Plaintiffs would have understood from the Notices, but determining whether the Notices were adequate is a context-specific inquiry that would benefit from a fully developed record.

Accordingly, although the Plaintiffs' arguments have some force, the Court declines to reach a definitive determination at this point and therefore denies the Plaintiffs' Cross-Motion.

E. WARN Act Claim Against Battelle and the Investor Defendants Under the "Single Employer Doctrine"

The Court now turns to whether the FAC sufficiently alleges that Battelle and/or the Investor Defendants were so intertwined with AmplifyBio that they formed a "single employer"

for purposes of the WARN Act and the Regulations and are therefore potentially liable if AmplifyBio is ultimately found to have violated the WARN Act.

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The Regulations establish what is known as the "single employer" doctrine, under which the test for when a shareholder in a business may be liable is expanded beyond what might apply under traditional principles of piercing the corporate veil under state corporate law. Under existing legal rules, independent contractors and subsidiaries which are wholly or partially owned by a parent company are treated as separate employers or as a part of the parent or contracting company depending upon the degree of their independence from the parent. Some of the factors to be considered in making this determination are (i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations.

20 C.F.R. § 639.3(a)(2). The list of factors is not exclusive, and not all factors need to be satisfied, and they need not be equally weighted. McKinney v. Carlton Manor Nursing & Rehab. Ctr., Inc.,

868 F.3d 461, 463-64 (6th Cir. 2017). The Investor Defendants first stress that none of them (nor all of them collectively) owned the majority interest in AmplifyBio and therefore they cannot be considered parents. But the Regulations, as set forth above, contemplate that the single employer doctrine can turn on whether the debtor is "wholly or partially owned by a parent company." 20 C.F.R. § 639.3(a)(2) (emphasis added); McKinney, 868 F.3d at 463-64.

The FAC alleges factor one and factor two, except for Narya. Each of Battelle and the Investor Defendants owned (either directly or through a wholly-owned subsidiary) an interest in AmplifyBio, and each, except for Narya, had at least one representative on the AmplifyBio board of directors. FAC ¶¶ 22, 25, Dkt. No. 31. Although two of the five factors under § 639.3(a)(2) are alleged in the FAC, these are the two least significant factors. The "mere ownership of a subsidiary does not justify the imposition of liability on the parent, nor will liability be imposed on the parent corporation merely because directors of the parent corporation also serve as directors of the subsidiary." Bledsoe, 258 F. Supp. 2d at 786 (citation modified).

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As to the third factor, the de facto control, the "core of this factor is whether one company 'was the decisionmaker responsible for the employment practice giving rise to the litigation.'" In re APA Transp. Corp. Consol. Litig., 541 F.3d 233, 245 (3d Cir. 2008) (quoting Pearson v. Component Tech. Corp., 247 F.3d 471, 503-504 (3d Cir. 2001)). Critically, unlike the first two factors, where this factor is satisfied, it can result in a finding of liability even if the other factors are not present. Pearson, 247 F.3d at 504. But there must be more than the "exercise of control pursuant to the ordinary incidents of stock ownership." Id. at 503. The FAC alleges that Battelle and the Investor Defendants each had "de facto and de jure" control over AmplifyBio by having board representation and receiving voting shares. FAC ¶¶ 22, 24, Dkt. No. 31. But these allegations are entirely conclusory in terms of the exercise of control. If that were all the complaint said, the Court would have to conclude that the FAC is too conclusory to survive. But the FAC contains additional allegations. It alleges that Battelle and the Investor Defendants exercised control by requiring AmplifyBio to retain Accordion Partners and appoint Ms. Rosado as chief restructuring officer. Id. ¶ 28. Further, the FAC alleges that Battelle and the Investor Defendants directed AmplifyBio to terminate the Plaintiffs on April 4, 2025, and not to give the sixty days' notice (or pay in lieu of that notice) required by the WARN Act. Id. ¶¶ 30-33. Further, Viking and Casdin are alleged to have signed the corporate resolution directing AmplifyBio to file chapter

11. Id. ¶ 37. Finally, Battelle held a majority of the ownership interest in AmplifyBio and was also a secured creditor. Id. ¶¶ 21, 38.

These allegations, over and above the conclusory allegation of de facto control, are the type of allegations that courts have found to lift claims from the conceivable to the plausible. Austen

v. Catterton Partners V, LP, 709 F. Supp. 2d 168, 177 (D. Conn. 2010); Smith v. Ajax Magnathermic Corp., 144 F. App'x 482, 485-86 (6th Cir. 2005) (holding that the complaint

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adequately stated a claim where it alleged that the lenders had "inserted" a consulting firm to

"manage" the employer). In this regard, the issue is not whether the parent companies exercised de facto control in a broad sense, but rather whether they are the ones that ordered the mass layoff without complying with the WARN Act. Austen, 709 F. Supp. 2d at 177 ("Most importantly, Plaintiffs allege that Defendants made the decision to file for bankruptcy, shut down the Archway Entities' facilities, and terminate their employees -- the precise decisions with which the WARN Act is concerned."). And the FAC alleges that it was Battelle and the Investor Defendants who made those decisions. FAC ¶¶ 32-33, Dkt. No. 68.

Ultimately, the Defendants' arguments that the Plaintiffs have not alleged such relationship between AmplifyBio and the Defendants to meet the "single employer" test under the WARN's Act boil down to the assertion that AmplifyBio made the layoff decisions itself. Inv. Defs.' Reply 7, Dkt. No. 82 ("there is no factual dispute about who made the layoff decisions."). But this statement directly conflicts with the Plaintiffs' allegations, which allege that Battelle and the Investor Defendants directed that the layoff occur and that the employees be given neither sixty days' notice nor pay in lieu of that notice. FAC ¶¶ 32-33, Dkt. No. 31. At the pleadings stage, such disputes must be resolved in favor of the Plaintiffs. Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1041 (6th Cir. 2022) ("we cannot settle a factual dispute on a motion to dismiss, where we instead must take the complaint's well-pleaded allegations as true."). The Court recognizes that some of these allegations are stated in general terms, but "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Twombly, 550 U.S. at 555). As the Supreme Court recently reiterated, Civil Rule 8(a) does not require the pleading of evidence. Berk v. Choy, 607

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U.S. 187, 193, 146 S. Ct. 546, 553, 223 L.Ed.2d 463, 471 (2026) ("By requiring no more than a statement of the claim, Rule 8 establishes implicitly, but with unmistakable clarity, that evidence of the claim is not required.") (citation modified).

This so-called "single employer" principle is a test that applies across much of federal labor law. Bledsoe v. Emery Worldwide Airlines, 258 F. Supp. 2d 780, 786 n.2 (S.D. Ohio 2003). As the court in Bledsoe ruled, the allegations of exercise of control over employment decisions and approval of the layoffs are sufficient at the pleading stage to proceed on a theory that the Defendants were considered an "employer" under the WARN Act. The question of whether the Defendants' involvement rose to the level necessary to impose WARN liability is a factual question not appropriate for resolution on a motion under Civil Rule 12. Bledsoe, 258 F. Supp. 2d at 787; see also Hiles v. Inoveris, LLC, Case No. 2:09-cv-53, 2009 U.S. Dist. LEXIS 102430, at *8 (S.D. Ohio Nov. 4, 2009) ("While Bledsoe was decided before Twombly and Iqbal, the Court finds that its guidance is still relevant."); SASC, LLC v. Sch. Supply Conn., Inc., No. 3:23-cv-083, 2024 U.S. Dist. LEXIS 44296, at *9 (S.D. Ohio Mar. 13, 2024) (noting that courts in this district apply a "lenient" standard when evaluating whether a complaint has alleged that a shareholder has exercised sufficient control to warrant holding that shareholder liable); Mike Albert, Ltd. v. 540 Auto Repair, Inc., No. 1:21-cv-286, 2022 U.S. Dist. LEXIS 28934, at *29 (S.D. Ohio Feb. 17, 2022) (same; collecting cases). ²⁴ The Plaintiffs have thus alleged sufficient facts on the single employer issue to survive judgment on the pleadings. The Battelle Motion and the Investor Defendants' Motions on that issue must be denied.

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F. Count II - Violation of the Ohio Prompt Payment Act, Ohio Rev. Code § 4113.15

Count II of the FAC alleges that the pay in lieu of notice provided by 29 U.S.C. § 2104 constitutes "wages" under Ohio law. The statute, Ohio Rev. Code § 4113.15(A) provides as follows:

(A) Every employer doing business in this state shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and shall, on or before the fifteenth day of each month, pay such employees the wages earned by them during the last half of the preceding calendar month. If at any time of payment an employee is absent from the employee's regular place of labor and does not receive payment of wages through an authorized representative, such person shall be entitled to said payment at any time thereafter upon demand upon the proper paymaster at the place where such wages are usually paid and where such pay is due. This section does not prohibit the daily or weekly payment of wages. The use of a longer time lapse that is customary to a given trade, profession or occupation, or establishment of a different time lapse by written contract or by operation of law. Ohio Rev. Code § 4113.15(A).²⁵The first question is whether the WARN Act's remedy of back pay constitutes "wages" under § 4113.15(A), such that the failure to pay it in a timely fashion violates § 4113.15(A) and triggers the remedies in § 4113.15(B).

Section 4113.15 defines "wage."

"Wage" means the net amount of money payable to an employee, including any guaranteed pay or reimbursement for expenses, less any federal, state, or local taxes withheld; any deductions made pursuant to a written agreement for the

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purpose of providing the employee with any fringe benefits; and any employee authorized deduction.

Ohio Rev. Code § 4113.15(D)(1). This definition appears to be unambiguous: "wages"

means all amounts due to an employee, net of taxes and any authorized deductions. The plain language of the definition does not limit the basis for which money is owed to the employee. If money is payable to an employee, then it is wages. So defined, it is hard to see any basis to exclude back pay awarded under the WARN Act. "Where a statute defines terms used therein, such definition controls in the application of the statute, even though such definition may vary from that employed as to similar words in other statutes." McKinney v. Omni Die Casting, Inc., 2017-Ohio- 2949, ¶ 26, 91 N.E.3d 124, 129 (Ohio Ct. App. 2017) (quoting Good Samaritan Hosp. v. Porterfield, 29 Ohio St. 2d 25, 30, 278 N.E.2d 26, 29 (1972)).

There does not appear to be any on-point Ohio caselaw. One case, Fegatelli v. Ohio Bur. of Emp. Servs., 765 N.E.2d 961 (Ohio Ct. App. 2001), addresses the treatment of WARN Act payments for purposes of Ohio's unemployment compensation laws. The issue in Fegatelli, however, was whether WARN Act back pay counted as "remuneration" that had to be deducted from unemployment compensation. Fegatelli, 765 N.E.2d at 965. So, it has limited value here because it involves different questions, different statutes, and different definitions. But the case is notable because it reflects the Ohio courts' view of the WARN Act damages: "Regardless whether the payments are a penalty to the employer, the practical effect of the payments to the employee are that the employee is placed in the position the employee would have been in had the job not been terminated without proper notice. It is pay for work that should have been performed."

Fegatelli, 765 N.E.2d at 965. This logic suggests that WARN Act payments should be treated as wages under § 4113.15.

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In addition, there is one federal case, Smith v. Zulily, LLC, No. C24-1480-KKE, 2025 U.S. Dist. LEXIS 91075 (W.D. Wash. May 13, 2025), that squarely considered the issues presented here in the context of a Civil Rule 12 motion. The Smith court, albeit in a relatively brief order without extended discussion, concluded that the defendants in that case had not shown that WARN Act back pay could not constitute "wages" under § 4113.15(A) as a matter of law. Smith, 2025 U.S. Dist. LEXIS 91075, at *14.

Neither Smith nor Zagatelli provide particularly compelling authority. But they are essentially all that is available. And the Court's mandate when deciding a question of state law is to consider "all relevant data" including Ohio and all federal courts. Generation Changers Church,

168 F.4th at 365. Without any other authority on point and given that the plain language of the definition of "wage" in § 4113.15(D)(1) does not appear to exclude WARN Act back pay, the Court must reject the Liquidating Trustee's argument.

The second issue asserted here is whether Battelle and the Investor Defendants could be regarded as the "employers" under § 4113.15. The difficulty is that the definition of "employer"

is singularly unhelpful:

"Employer" means an individual, firm, partnership, association, or corporation, but does not include a franchisor with respect to the franchisor's relationship with a franchisee or an employee of a franchisee, unless either of the following applies:

(a) The franchisor agrees to assume that role in writing.

(b) A court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademark, brand, or both.

Ohio Rev. Code § 4113.15(D)(4). Except with reference to a "franchisor," the definition simply states that an employer is an "individual, firm, partnership, association, or corporation" but provides no guidance on how employer status is to be determined.

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The Investor Defendants argue that the Court should view the exception for franchisors as a general indication that the Ohio General Assembly "rejects expensive, derivative employer- liability theories." Inv. Defs.' Reply 12, Dkt. No. 82. That may be true for franchisors, for whom the General Assembly provided a specific exclusion. But that exclusion does not apply to the Investor Defendants, who do not assert that they are franchisors. And the fact that the General Assembly provided a limited exclusion does not demonstrate its intent to provide a much broader exclusion. Under Ohio law, "if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded." State ex rel. Fair Hous. Opportunities of Nw. Ohio v. Ohio Fair Plan, 222 N.E.3d 611, 617 (Ohio 2023) (citation modified). Thus, the fact that the General Assembly specifically excluded franchisors from the definition of employer does not help the Investor Defendants in the way that they assert. Without any authority specifically excluding the WARN Act's definition of employer, the Court cannot conclude as a matter of law that Battelle or the Investor Defendants have shown that they are entitled to judgment on the pleadings on this issue. At this point for pleading purposes, if the Investor Defendants are subject to WARN Act liability, they are potentially subject to liability under § 4113.15(A).

G. Count III - Liability Under Ohio Rev. Code § 2307.60

This claim turns on the interplay between two Ohio statutes. First, Ohio Rev. Code § 4113.99(A) provides that "[w]hoever violates section 4113.15 of the Revised Code is guilty of a misdemeanor of the first degree." Second, Ohio Rev. Code § 2307.60(A)(1) states:

(A)(1) Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

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The Plaintiffs assert that, to the extent that § 4113.15 was violated by the failure to provide sixty days' back pay in lieu of notice, the Defendants collectively committed a misdemeanor under § 4113.99(A) and are therefore liable under § 2307.60(A)(1). Jacobson v. Kaforey, 149 Ohio St.3d 398, 75 N.E.3d 203 (2016). No underlying criminal conviction is required. Buddenberg v. Weisdack, 161 Ohio St.3d 160, 161 N.E.3d 603, 605-08 (2020).

The Defendants here largely assert that this claim is derivative, and should therefore be dismissed, but since the Court is denying the Defendants' Motions regarding Counts I and II, it cannot dismiss Count III. The Court also notes that the parties' arguments on Count III are almost entirely undeveloped. The Liquidating Trustee asserts that AmplifyBio's conduct of terminating its employees and filing chapter 11 cannot be regarded as criminal, but if § 4113.15(A) was violated, then § 4113.99 appears to make that violation a misdemeanor.²⁶It therefore appears that § 2307.60 would plausibly apply here and therefore Count III states a claim at least at the pleading stage.

V. Conclusion

For the reasons stated above, the Defendants' Motions and the Plaintiffs' Cross-Motion are hereby DENIED. As noted above, the Liquidating Trustee shall file a motion (or submit an agreed order if all parties agree) to approve his substitution in place of AmplifyBio. The Court is concerned that this case has been pending for over sixteen months, but it is still at the pleadings stage. Shortly, the Court will set a pretrial conference by separate notice to establish a schedule for discovery, dispositive motions, and any related matters in this adversary proceeding. Given the time that has elapsed since the parties filed their Preliminary Pretrial Statements in November

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2025, the parties are directed to review those statements and to meet and confer regarding a compact yet realistic discovery and case schedule. Any revisions or supplements to the parties' previously-filed Preliminary Pretrial Statements shall be filed at least seven days in advance of the pretrial conference.

Accordingly, it is therefore ORDERED that:

1. the Motions are DENIED; and it is further

2. ORDERED that the Liquidating Trustee shall file a motion (or submit an agreed order if all parties agree) to approve his substitution in place of AmplifyBio.

IT IS SO ORDERED.

Copies to:

Counsel for the Liquidating Trustee:

Thomas Fawkes (via ECF)

Melissa Kelly (via ECF)

Gregory Abrams

Tucker Ellis

233 South Wacker Drive Suite 6950

Chicago, IL 60606-6395 Counsel to AmplifyBio:

Maria Carr (via ECF) Scott Opincar (via ECF) Ryan Neumeyer (via ECF) Counsel to Battelle:

John Cannizzaro (via ECF) Catherine Strauss (via ECF) Sara Sams (via ECF) Counsel to the Investor Defendants:

Marc Kessler (via ECF)

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Janica Tucker (via ECF) Counsel for Plaintiffs:

Jason Starling (via ECF) Counsel for Interested Party Willis Spangler Associates LTD Michael R. Reed (via ECF)